Apple’s Legal Argument ‘Calls the Director of the FBI a Liar, in as Many Words’

Staff Writer

Apple issued a forceful legal response Thursday to an FBI order that would require Apple to help the agency hack an iPhone belonging to one of the San Bernardino terrorists.

The first sentence of Apple’s motion to vacate the order sets the tone: “This is not a case about one isolated iPhone.” What follows is a strong rebuke of the idea that the company should be conscripted to write code for the federal government that fundamentally undermines the privacy and security ideals the company has become known for.

That idea, of course, is what has spurred such interest in the case: The idea that, if Apple helps the FBI once, it will have created software that can be used over and over again by law enforcement—and perhaps by hackers—to get data off of any iPhone. The brief is also a long, direct challenge to FBI Director James Comey’s blog post Sunday night that called the issue “actually quite narrow.”

“The San Bernardino litigation isn't about trying to set a precedent or send any kind of message. It is about the victims and justice,” Comey wrote. “We don't want to break anyone's encryption or set a master key loose on the land.”

Electronic Frontier Foundation lawyer Nate Cardozo told Motherboard it was “one of the most forceful briefs I’ve read in a long time.”

“Here we have Apple’s argument calling the director of the FBI a liar, in as many words,” Cardozo said. “And it’s true. What the director of the FBI said Sunday was a bald-faced lie.”

In other passages, Apple makes clear that it fundamentally believes that helping the FBI on this case threatens the privacy and security of its customers; in another, it argues that the FBI is compelling Apple to create an act of speech, violating the First Amendment; in another, it says the issue of encryption backdoors—which would require companies such as Apple to build vulnerabilities into their products that help the government access encrypted data—is one that should be debated “politically,” not “judicially.”

“If this order is permitted to stand, it will only be a matter of days before some other prosecutor, in some other important case, before some other judge, seeks a similar order using this case as precedent,” Apple wrote. “Once the floodgates open, they cannot be closed, and the device security that Apple has worked so tirelessly to achieve will be unwound without so much as a congressional vote.”

Apple puts forth multiple legal arguments in its defense. It first suggests that the Communications Assistance for Law Enforcement Act, which governs crypto backdoors for telecom companies, should supersede the All Writs Act, which allows courts to compel third parties to assist in criminal cases unless covered by another law. It says that under CALEA, Apple is not “responsible for ‘decrypting or ensuring the government’s ability to decrypt any communication by the subscriber or customer unless the encryption was provided by the carrier and the carrier possesses the information necessary to decrypt the communication.’”

"The government disagrees with this position and asks this court to compel Apple to write new software that advances its contrary views. This is, in every sense of the term, viewpoint discrimination that violates the First Amendment"

In its most lengthy and perhaps most persuasive defense, Apple says that, even should the All Writs Act apply, Apple’s help would be “unreasonably burdensome” to the company, which the Supreme Court ruled would preclude companies from assisting law enforcement. The company suggested it would take a team of six to 10 software engineers between two and four weeks to develop the operating system, and that it would have to write new code each and every time the FBI or law enforcement wanted to use it again or safeguard that code from hackers and malicious insiders.

Apple says it would have to create an entirely new type of job: “hackers” who are dedicated to breaking the iPhone. Alternatively, Apple could keep the software, which is entirely different type of burden, the company argued.

“The alternative—keeping and maintaining the compromised operating system and everything related to it—imposes a different but no less significant burden,” the company wrote, “forcing Apple to take on the task of unfailingly securing against disclosure or misappropriation the development and testing environments, equipment, codebase, documentation, and any other materials relating to the compromised operating system.”

If the code got out in the wild, hackers would inevitably get it, “risking the security, safety, and privacy of customers whose lives are chronicled on their phones,” as well as Apple’s reputation as a company that values security.

"Apple is no more connected to this phone than General Motors is to a company car used by a fraudster on his daily commute"

Apple also suggested the company is “sufficiently removed” from the case such that it should not be required to help: “Nothing connects Apple to this case such that it can be drafted into government service to write software that permits the government to defeat the security features on Apple’s standard operating system. Apple is a private company that does not own or possess the phone at issue, has no connection to the data that may or may not exist on the phone, and is not related in any way to the events giving rise to the investigation.”

“The All Writs Act does not allow the government to compel a manufacturer’s assistance merely because it has placed a good into the stream of commerce,” Apple continued. “Apple is no more connected to this phone than General Motors is to a company car used by a fraudster on his daily commute."

Finally, Apple suggested that the order violates both the First and Fifth Amendment rights of the company: “the First Amendment prohibits the government from compelling Apple to create code,” and it also violates the Due Process clause of the Fifth Amendment.

“When Apple designed iOS 8, it wrote code that announced the value it placed on data security and the privacy of citizens by omitting a back door that bad actors might exploit,” Apple wrote. “The government disagrees with this position and asks this court to compel Apple to write new software that advances its contrary views. This is, in every sense of the term, viewpoint discrimination that violates the First Amendment.”

Thursday’s volley was the first in what’s sure to be an extended legal process. The next hearing in this case is March 22. Comey has already suggested the case is eventually going to the Ninth Circuit Court of Appeals, while Apple CEO Tim Cook has said the company is willing to take this case to the Supreme Court.